Missouri Injury Law Blog

For obvious reasons, when the damage to the cars involved in a collision is severe, the Plaintiff wants to show pictures of the damage to the jury and the defense wants to try and exclude them as irrelevant; and the opposite is true when the damage to the vehicles is minor. Personally, whenever I take a car accident case to trial in Missouri, I want the jury to see the pictures regardless if the damage is minor or major because they are going to want to see these pictures to fully understand all the circumstances about the collision. However, oftentimes pictures are excluded by the judge based on motion filed by the victim's lawyer of the insurance defense lawyer.

So what is the law in Missouri about when car damage pics can be used and when they should not be used at trial in a car accident lawsuit?

Oftentimes, if the damage is minor the defense will try to introduce evidence of property damage in an attempt to argue or infer to a jury that there is a scientific and/or medical relationship between degree of vehicle damage and degree of occupant's personal injury. It can be argued that such a conclusion would be unfounded if not supported by expert testimony establishing it, so if no expert has been identified, then the pictures are irrelevant. In this situation the Plaintiff should argue that the pictures invite the jury to unfairly speculate to the prejudice of a litigant. As the Western District has explained, a trial judge is required to consider both the degree of probative value and the degree of potential prejudicial effect. Even relevant evidence should be excluded when the potential prejudicial effect of the evidence exceeds the probative value. Stevinson v. Deffenbaugh Industries, Inc., 870 S.W.2d 851, 860 (Mo.App. 1993). Evidence is considered prejudicial if it "tends to lead the jury to decide the case on some basis other than the established propositions in the case."

Additionally, Missouri Courts Have Held that the speed of impact cannot be determined by property damage photographs. The defendant may be trying to ask the jury to conclude that the speed or force of impact itself can be determined by the testimony of witnesses or by the photographs of damage. But such a conclusion lacks reliable foundation.

In Missey v. Kwan, the Eastern District held that a police officer could not be permitted to testify as to speed of vehicles at impact, when his opinion was based on what witnesses said about the speed and on the condition of the vehicle following the impact. Missey v. Kwan, 595 S.W.2d 460, 463 (Mo.App.E.D. 1980) The Missey court noted, that while skid marks could provide a sufficient basis for estimating speed, "Such is not the case with estimates of speed based on conditions of the vehicles after impact." M

In Everett v. Bishop, the Eastern District declined to allow even an accident reconstructionist to testify as to speed of impact when his opinions was based on photographs of property damage. Everett v. Bishop, 680 S.W.2d 779, 781 (Mo.App. E.D. 1984) If evidence of property damage does not provide a sufficient basis for an expert to reach conclusions about speed or force, surely it does not provide sufficient basis for a layperson to do so.

Permitting the Jury to Speculate that Allegedly "Minor" Impact Equals Minor Injury Would Prejudice the Plaintiff

If the defendant also apparently intends to invite a jury of laypersons to take a next step and reach a medical conclusion: that the severity of injury is determined by the force of impact. Such an argument is prejudicial by definition because it would invite the jury to decide the case on the basis of a proposition which is not established - that is, the proposition that minor impact equals minor injury. This conclusion would require supporting expert testimony. Yo need to ask, has the defendant disclosed medical, biomechanical, or other experts to support it. The Defendant should not be allowed to ask the jury to assume it, based on "common sense." Missouri trial courts have properly rejected this effort. While there is apparently no Missouri appellate decision on the question, one state supreme court and two state appellate courts have refused to permit such boot-strapping on the purported basis of "common sense."

The Delaware Supreme Court in Davis v. Maute (copy attached) held that without expert testimony is was reversible error to admit property damage evidence and allow defense counsel to argue that a serious injury could not have resulted from a "minor" accident. Davis v. Maute, 770 A.2d 36 (Del. 2001). Over objection, defense counsel there was permitted to introduce evidence of the cars involved in the accident, and then bootstrap into the argument that because the property damage appeared to be minor, the injury must not have been significant. The Delaware Supreme Court reversed, concluding that the only relevance of the photographs was to suggest that the plaintiff could not have sustained serious injury from an allegedly minor accident, and stating that absent expert testimony, "any inference by the jury that minimal damage to Plaintiff's car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation." Davis v. Maute, supra, 770 A.2d at 40 (emphasis added).
A New Jersey appellate court agreed in Brenman v. Demello, 383 N.J. Super. 521, 890 A.2d 741 (N.J. Super. 2006). The Brenman court concluded that "If the pertinent field of expertise has yet to establish a scientific basis for the connection, we question how a jury may be expected to draw an inference of causation in the absence of any proof, expert or otherwise."

Likewise, an Illinois appellate court has held that a decision by the trial court granting the plaintiff's motion in limine to exclude property damage photographs or testimony as to the damage caused to the vehicles was correct, holding that to do so is necessary "to avoid what amounts to the jury forming medical opinions." DiCosola v. Bowman, 342 Ill.App.3d 530, 536-37, 794 N.E.2d 875-76, 880 (2003). In so holding, the appellate court cited the Illinois Supreme Court case of Voykin v. DeDoer, which noted:

(w)ithout question, the human body is complex...In most cases, the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in normal circumstances, a lay juror can effectively or accurately assess the relationship between prior injury and current injury without expert assistance.

The same principles apply to an attempt to correlate property damage to physical injury. Without expert testimony, there is not a sufficient basis to make such a conclusion, and attempts to have the jury supply such a scientific basis with their "common sense" should fail.

Continue reading "Are Pictures of Car Damage Relevant in Missouri Car Crash Trials? " »

Generally, under Missouri law, witnesses cannot testify about the credibility or truthfulness of another witness or party to the case. That is the job of the jury, to weigh credibility and decide who is telling the truth. So obviously, one witness cannot say another is dishonest or opine that the victim is exaggerating her pain because of a lawsuit. This is referred to as malingering. Whether it is from a lay witness or an expert medical witnesses, it is plain error to admit testimony that is a thinly veiled comment on a witness' credibility.

However, what about defense hired doctors who try and claim that patients who are involved in litigation tend to have complaints of pain longer than those that do not have ongoing litigation? We had on such situation when a brain injury case involving post-concussion syndrome went to trial recently in St Louis County court. The neuropsychologist that examined the Plaintiff testified in his deposition (testimony before trial) that patients with post concussion syndrome, who complain of symptoms more than 1 year from the date of injury, may be complaining of symptoms because of ongoing litigation. This testimony is absolutely inadmissible as the doctor is very obviously implying that the Plaintiff is making up their complaints because of an ongoing lawsuit. This is what defense doctor's are hired to do, call the Plaintiff a liar or malingerer and try to imply to the jury they are only saying they are hurt for money. This is a witness testifying about the credibility of another witness, again, the job of the jury to weigh credibility, not witnesses.

In Allen v. Andrews, 599 S.W.2d 262 (Mo.App.S.D. 1980), the plaintiff hurt their neck in a Springfield Missouri car accident. The case went to trial, however, after the verdict the Judge ordered a new trial because of testimony from a defense doctor that should not have been allowed. In particular, a treating physician called to testify by the defendant testified:

"I would just like to make a broad statement insofar as my dealings with patients with injuries which involve litigation.... I repeat that without exception patients with litigation in injured necks apparently recover because they never come back to see me once the litigation has been settled, so I would say (the plaintiff's) neck would recover without any residual disability."

This case supports the proposition that testimony offering generalized opinions as to the credibility of plaintiffs is unfairly prejudicial.

In Yingling v. Hartwig, 925 S.W.2d. 952, 956 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation were allowed by the trial judge. However, the court of appeals found that the allowance of this testimony to be an abuse of discretion. That comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, and that is an issue for the jury to decide.

The court began its analysis by noting that the challenged witness' testimony in the case before it was similar to the witness testimony considered in the Allen case discussed above. In particular, the court observed:

"[A]s in Allen, the trial court in the case at bar abused its discretion in allowing testimony because it was highly prejudicial to the Yinglings' case. [The] testimony constituted broad-sweeping statements reflecting on "people not in litigation" and "people who are in litigation" - generalities, without any indication of similarity with or application to Christina Yingling. A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. * * * Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether Christina Yingling continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony."

In other words, the court found that generalized opinions, as to the credibility and/or truthfulness of litigants in general, is irrelevant to the credibility or truthfulness of the plaintiff in a particular case, and that such opinions are unfairly prejudicial. Importantly, however, the court did not end its analysis there. Rather, the court went on to consider whether the opinion testimony in question - if assumed to be relevant and probative as to the particular plaintiff - was still too unfairly prejudicial to be admitted. The court answered this question in the affirmative. Specifically, the court said:

"Even if we assumed, arguendo, the testimony was somehow logically relevant, any probative value is far outweighed by its prejudicial effect to the Yinglings. * * * [The witness'] testimony was, in essence, a comment on a plaintiff's credibility; a statement that plaintiffs generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Tayler, 663 S.W.2d 235, 239 (Mo. banc. 1984) ("[E]xpert opinion testimony is not admissible as it relates to credibility of witnesses")."

"[E]ven if we could say the testimony had some logical relevance and some probative value, which we cannot, it would still be inadmissible because its prejudicial effect is wholly disproportionate to any value it might have."

Even if generalized opinion testimony regarding the tendency of litigants in general to manufacture or exaggerate their symptoms were somehow relevant and probative on the issue of whether a particular plaintiff was manufacturing or exaggerating her symptoms, such opinion testimony would nevertheless constitute an improper and inadmissible comment on a plaintiff's credibility, and would be unfairly prejudicial. On this basis, the court reversed and remanded for a new trial.

Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witness of the same type under consideration invests "scientific cachet" on the central issue of credibility and should not be admitted.

Continue reading "In Missouri, Witnesses cannot Claim Victim's Symptoms are Effected by Litigation - The Malingering Defense" »

Witnesses may be impeached (question their credibility and veracity) based on previous convictions. This oftentimes comes into play in Missouri car accident lawsuits. In some cases the at-fault driver has a history of DWI or other convictions, but no convictions from the car accident at issue. Generally, the plaintiff then cannot just tell the jury about these convictions, because they are not relevant to the car accident at hand; however, if the Defendant testifies, previous convictions can be used to attack his credibility and therefore get the convictions into evidence.

Under Missouri statutes, the prior convictions of a witness are admissible by statute, see Missouri Statute § 491.050, "Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case[.]"

Accordingly, on cross-examination a party may "elicit the nature, dates, places of the occurrences and sentences." State v. Holden, 278 S.W.3d 674, 681 (Mo. 2009). The court has often noted that in "literary terms the who, what, when and where. . ." Are proper as to a conviction. Id. (citing State v. Light, 871 S.W.2d 59, 62-63 (Mo. App. 1994). "Unlike Federal Rule of Evidence 609, the Missouri statute . . . does not place any time limit on the offenses. See State v. Cantrell, 775 S.W.2d 319, 321 (Mo. App. E.D. 1989)(Finding statute allows allowing examination of convictions received over 30 years before trial). Further, the statute is not a discretionary statute but one of right.

Under clear Missouri law, plaintiff has the absolute right to obtain the nature, dates and places of the occurrence and the sentences resulting from a negligent driver's convictions.

We currently have several cases where this is an important issue in the case. For example an unlicensed driver that causes and accident may have several prior convictions for driving while suspended or DWI or other charges, this allows Plaintiff to get these previous convictions in front of a jury so they know the defendant driver continues to choose to needlessly endanger people on the roadway; empowering the jury to act in their intended role, as guardians of the community, by enforcing civil negligence rules.

Sansone / Lauber is a St Louis based trial law firm handling personal injury cases. For a free consultation call (314) 863-0500 or contact us online.

Related Articles:

Can a Personal Injury Lawyer Admit into Evidence an SIS (Suspended Imposition of Sentence - probation in lieu of a conviction)

Missouri Now Allows Impeachment of Witness on Collateral Matters not Relevant to Case

Under Missouri personal injury law, asking the jury to "send a message" with their verdict is generally reserved for punitive damage cases and typically not allowed in cases where compensatory damages are the only damages sought. Most personal injury cases are compensatory damage cases; most car accident lawsuits do not alleged punitive damages, unless the driver was drunk or did some sort of other reprehensible or intentional act. So can a good Missouri trial lawyer ask the jury in closing argument to "send a message' if punitive damages are not an issue? Maybe, depending on the judge, and then it must be done correctly and carefully.

First, the judge must allow it and not sustain an objection by the defense, or even grant a mistrial because the judge feels the reference to sending a message is so prejudicial that it ruins the jury's ability to properly determine a verdict. The objection is a likely scenario and different judges will rule differently on the issue. The mistrial is and extreme reaction to the argument, however, it can happen.

Generally, Missouri courts have left it in the discretion of the trial court judge to what extent "send a message" arguments can be allowed, ruling that it has been ok in some cases because it was not prejudicial or that an objection and curative instruction corrected any potential error or prejudice. "Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo 1989).

It appears it is not reversible error in compensatory damage cases if (1) the injury lawyer argues the message to be sent by the verdict is to be sent just the Defendant, and (2) the plaintiff's counsel is clear that they are asking for damages supported by the evidence. Limiting the message being sent to just the defendant avoids the argument of deterrent effect to others (reserved for punitive damage claims) and by referring to only the damages supported by the evidence a good attorney avoids the argument that they are asking for punitive damages, since they are only asking for damages supported by the evidence, not additional damages for deterrence, which is punitive in nature.

The two issues discussed above for not crossing the line into punitive damage arguments are discussed in Dickerson v. St Louis Southwestern Railway Company, 674 S.W. 2d 165 (Mo Ct App ED 1984). In this case, during the closing arguments the Missouri accident attorney stated, when referring to the verdict:

"It is going to be heard by this railroad all of the way out to the home office in San Francisco, and I ask you to make it for an amount that's proven by the evidence that we've talked about that they'll hear about loud and clear for all times.

But I ask you to make it as generous as you possibly can and let them know when you come back down here, "Mr. Railroad, we have done our job. Here is the price tag."

The defense lawyer objected to the argument and the trial court overruled the objection, meaning they allowed the closing argument. The defendant lost the trial and they appealed the case, in part claiming the arguments above were improper "send a message" arguments that are reserved for punitive damage cases. The Eastern District Appeals Court upheld the trial court's ruling, thus agreeing that the argument was permissible, because:

1. Trial court has broad discretion in ruling on propriety of jury argument
2. The argument does not expressly request the jury to punish the defendant
3. Plaintiff limited his damages request to "an amount proven by the evidence"
4. Plaintiff limited his message to be sent to defendant's corporate headquarters
5. Plaintiff did NOT refer to the deterrent effect the verdict might have on others.

Additionally, the best Missouri injury lawyers know not to make the "Send a message" argument the theme of their closing, they state it and move on. "When the send a message argument becomes the theme of the entire closing, it constitutes reversible error." Smith v. Courter, M.D., 531 S.W.2d 743 (Mo 1973).

The Courts have also allowed defense lawyers to argue to a jury to reject the plaintiff's claim and in doing so send a message to society that litigation is too common and must be deterred. In the case of Beis v Dias, 859 SW2d 835 (Mo 1993), send a message was argued by the defense to send a message to a litigious society not to sue doctors for complications that are accepted risks of the surgery.

Defense argument to jury:

"[Y]ou have a golden opportunity here to help correct one of the most litigious societies--the most litigious society in the world. You have an opportunity--

(objection - overruled)

"You have an opportunity here to take the burden off of Dr. Dias's back and place it where it belongs. These people should not recover any money whatsoever. We cannot encourage this type of activity. Folks, look, I don't deny and I've never tried to deny and I told you this up front, that she had complications develop as a result of the surgery. But they are accepted risks of the surgery. They are known risks of this surgery and unfortunately, it happened to this lady. But we are here to determine whether or not Dr. Dias in any way was negligent. Did he fall below an acceptable standard of care with reference to his treatment, his care, his surgery of this woman?"

1. It was not the ongoing theme of defendant's closing;
2. After objection defense counsel moved from the argument even though the objection was overruled;
3. Again holding that the trial court has "superior opportunity to appraise the impact of the argument to the jury, we accord the trial court broad discretion in this area of closing argument"

I personally disagree with the court's ruling in this situation, as the defense lawyer was improperly asking the jury not to determine their verdict based on the evidence, but was asking them to send a message to society about the dislike for medical malpractice lawsuits. He was not asking for punitive damages in the form of a money verdict, but a sort of punitive damages by a defense verdict and that would send a message to society.

The case law really comes down to the fact that the trial court has discretion to make these decisions and that the court of appeals will not tamper with that decision unless their is abuse of discretion by allowing very improper arguments to be made. So depending on the judge, a good lawyer may be able to argue "send a message", and if they keep it within the parameters discussed above, the court of appeals should not second guess it.

Continue reading "Missouri Law on "Send a Message" Arguments to a Jury in Non-Puntive Damages Cases" »

Recently we settled a Missouri auto accident case that was caused by a distracted driver with allegations of drug use. We represented the passenger that was injured after the driver lost control of the pickup truck and ran off the road.

But the driver did not have his own auto insurance; Permissive Use?

The driver was the passenger's "friend" and did not have his own auto insurance to cover the injuries sustained by the passenger. However, the car he was driving was not owned by him but was owned by the passenger's grandfather. The grandson had permission to drive the car and let his friend drive. Therefore, under Missouri insurance law, the grandfather's insurance policy covers the at fault driver because the negligent driver is what is considered a permissive use driver. So the coverage purchased by the owner of the car is available for the injured passenger to collect from for his injuries that were caused by the negligence of the "permissive use" driver. Permissive use coverage is diffident than liability for negligent entrustment. For discussion about negligent entrustment see: Illinois Drunk Driving Car Crash - Negligent Entrustment.

See State Farm Mut. Auto Ins. Co. v. Scheel, 973 S.W.2d 560 (Ct App WD 1998) stating:

The requirement of "permissive use" of a motor vehicle in an omnibus or non-owned vehicle clause of an automobile insurance policy to limit liability coverage is a question of fact which may be satisfied by a showing of either express or implied permission. State Farm Fire & Cas. Co. v. Ricks, 902 S.W.2d 323, 324 (Ct App ED 1995)

What if the Driver has his own insurance and the car owner has insurance?

In the same case above, assuming the driver had his own insurance as well, there may be additional insurance coverage for the hurt car crash passenger. Both insurance policies may apply, but it depends on the amount of coverage under each policy and if the insurance policies have valid and enforceable "set-off" or "other insurance" clauses. a few scenarios that could occur are outlined below:

1. The Owner's and the Driver's Auto Insurance have the same coverage amounts:

If the owner and driver both have, for example, $25,000 in liability coverage then the passenger may be limited to just $25,000 total if the policies have valid and enforceable set-off or other insurance clauses. These insurance contract clauses basically say they are not liable to the extent "other insurance" covers the driver's liability. If they do not have these clauses or they are poorly written, the injured passenger may have $25,000 from each policy available, thus $50,000 in total insurance coverage.

In Missouri the case of Zemelman v. Equity Mut. Ins. Co., 935 S.W.2d 673 (Mo. App. WD 1996) discussed "set off" and "other insurance" clauses. In that case the Court read the policy's UIM "set-off" provision against the policy's "other insurance" provision and found it ambiguous because the language described the UIM as "excess over any other collectible insurance." In 2004, we successfully used the above case to avoid set-off and recover an additional $50,000 for our client injured in a St Louis car crash.

2. The Owner and Driver have Different Coverage Amounts:

If one car insurance policy has more liability coverage then that larger amount is typically available. But you still need to deal with issues of set-off. Example, policy #1 has $100,000 in coverage and policy #2 has $50,000 in coverage. A good Missouri car accident lawyer will try and pursue the full amount of each policy, or $150,000. However, many insurance companies now have enforceable set-off clauses, meaning the larger policy can set-off the smaller policy's payment of $50,000; therefore, the total amount recoverable is just the amount of the larger policy, or $100,000 in this example.

What Insurance Applies to My Case?

All cases are different and dozens of critical issues must be discussed and analyzed to ensure a maximum recovery for anyone injured in a car wreck. Insurance coverage is just one of many issues to address. Contact a good car wreck lawyer sooner rather than later. Call us for a free consultation and no fee unless we win. (314) 863-0500 or contact a lawyer online.

Many people not familiar with the Missouri personal injury legal process often get confused as to the issue of auto insurance versus the individual driver that caused the car accident. If the driver had auto insurance your claim is against the individual driver but the auto insurance company "indemnifies" the driver, or pays for the amount they owe as a result of the injuries caused. Additionally, the insurance company appoints and pays a lawyer they use, technically, the driver is the insurance lawyer's client, but in reality the insurance lawyer is looking out for the company that pays their bill, the auto insurer.

If the car insurance company will not settle the auto accident claim and a lawsuit is necessary, in most cases, the Missouri car accident lawsuit is against the driver, not the insurance company, however, as stated above, the insurance company foots the attorney bills and typically pays any settlement, judgment, or verdict.

In most cases the Jury is NOT told about auto insurance, as it is considered irrelevant under the Missouri collateral source rule. There are exceptions to this rule and other ways to get the issue of insurance in the juries minds. This is important as a jury could be reluctant to fully compensate an injured victim based on worries about whether or not the individual defendant driver can pay or if it will be an undue hardship for them to pay. A few years ago a St Louis jury returned a verdict in favor of my client in a car accident case. The verdict amount was good and double what the insurance company offered before the case, but it was not a great verdict. When I asked the jury, after they were dismissed by the judge, why they did not find a larger verdict, most of them told me, we felt sorry for the driver and did not want her to have to pay more. Example of a case where no one on the jury knew or assumed there was auto insurance. In fact when I asked them about auto insurance they stated they assumed there was no insurance because we did not tell them there was.

This insurance issue must be addressed and every good trial lawyer knows it. IT can be addressed as follows:

1. The "Insurance Question" During Voire Dire:

"Voire dire" or jury selection is the beginning of a trial where a pool of potential jurors is questioned top make sure they are an appropriate juror for the case. One of the questions that can be asked is called "The Insurance Question". Under Missouri law the Plaintiff's lawyer can ask the jury if they have any affiliation or interest in _______ Insurance Company. Cannot state it is the defendant driver's insurance company.

The accepted procedure in Missouri for asking the preliminary "insurance question" includes 1) first getting the judge's approval of the proposed question out of the hearing of the jury panel, 2) asking only one "insurance question," and 3) not asking it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 871 (Mo. banc 1993). The form of the question is at the trial court's discretion. However, it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.

2. Get the Jury Panel Talking About Insurance:

Inevitably, during voir dire, a juror will bring up auto insuance, a lawyer must be careful in doing so, but to the extent you can, a good Missouri injury lawyer will follow up with quesitons like "tell me more about that" or "anyone else feel the same way?" to get the jury discussing the issue of insurance coverage. There is no rule against the jury telling each other about insurance coverage!

3. Defense Lawyer is Employed by the Auto Insurer:

Oftentimes, the insurance defendant lawyer is directly employed by the auto insurance company. In that situation the court, in its discretion, can allow an additional insurance question, but even the best Missouri injury lawyers must be very careful not go over the line or they may risk a mistrial. In Richter v. Kirkwood, 111 S.W.3d 504 (MO Ct App SD 2003) the trial court allowed the personal injury lawyer to ask the jury if any of them knew the defense lawyer or provided goods or services to his employer, Allstate Insurance. The case was appealed with one of the grounds for appeal was the trial court allowing this question. The Court of Appeals upheld the ruling that the question was proper, stating:

It was within the trial court's discretion to allow plaintiffs' attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors.

4. Defense "Opens the Door" to the insurance issue:

The rules not allowing the Plaintiff to inject insurance coverage into the case does not stop the defense from being able to do it, however, they would never intentionally do it. So if the defense lawyer or one of his witnesses brings up auto insurance coverage, they effectively waived their objection to it and it is now admissible. If it is a simple slip up in testimony, the extent you can follow up on it will remain within the discretion of the trial judge.

But, if the defense argues to the jury about not burdening the defendant with a money judgment, that clearly opens the door for a good St Louis car accident lawyer to immediately follow up with the jury that there is no evidence that the defendant would have to personally pay any money judgment and that they have auto insurance to cover them. The defendant "opens the door" the the issue of insurance when they make an argument that can only be rebutted by the discussion of the insurance.

Continue reading "Missouri Auto Accident Claims - Getting the Issue of Auto Insurance in Front of a Jury " »

Injury victims sometimes have skeletons in the closet, but most of the time those skeletons have nothing to do with the how or why of a car accident, medical negligence, or other injury case. One such skeleton could be past illegal drug use or medical conditions such as cirrhosis of the liver. The defense will try to imply that past drug use or alcohol use somehow means the victim may have been drinking or using drugs at the time of the accident, even though there is no evidence of that. This form of character assassination is used to undermine the credibility of the victim with the jury and cast doubt on the victim's injuries.

The past drug use comes up from time to time, but a more unique situation is the cirrhosis of the liver issue. Can that medical diagnosis be used at trial? Should it be? Even if there is zero evidence that the victim was intoxicated or even suspected of being intoxicated when the accident occurred? This type of evidence must be excluded to protect the credibility of the victim and not allow irrelevant issues affect the jury's decision.

Generally, it is well accepted in Missouri that evidence must be legally relevant to be admissible. State v. Barriner, 111 S.W.3d 396 (Mo. 2003). "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable," whereas "legal relevance weighs the probative value of the evidence against its costs - unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." State v. Anderson, 76 S.W.3d 275 (Mo. 2002). Evidence is not legally relevant and thus inadmissible if its costs outweigh its benefits.

So what exactly does this mean? Typically decisions of relevance are within the discretion of the court, therefore, the trial court's decision will be upheld on appeal unless the appellate court finds "abuse of discretion", meaning the decision by the judge has no rationale support. "A trial court enjoys considerable discretion in the admission or exclusion of evidence." Barriner, 111 S.W.3d at 396 (quoting State v. Mayes, 63 S.W.3d 615, 629 (Mo. 2001)). Therefore, a good Missouri injury lawyer must be on their toes and stop the insurance company lawyer from convincing the judge there is some good reason to discuss drug or alcohol use that has nothing to do with the accident .

Allegations of a party's drug use presents a great risk of creating undue prejudice. Embree v. Norfolk & Western Ry. Co., 907 S.W.2d 319, 324 (Mo.App.E.D. 1995). Thus, generally such evidence is inadmissible unless it is clearly relevant and its probative value outweighs the recognized risk of undue prejudice. "Extreme caution" must be taken in admitting evidence of drug use". Embree, 907 S.W.2d 319.

A plaintiff's alleged drug use prior to the incident does not tend to prove any fact material to a case and can only be used to prejudice the jury against them. Likewise with cirrhosis of the liver, most often this condition is the result of prior drug or alcohol abuse and most jurors will come to that conclusion on their own if the condition is allowed into evidence. As long as their is no evidence that the Plaintiff was under the influence of drugs/alcohol on the day of the incident it must be excluded as irrelevant.

This is among literally hundreds of issues that must be considered when evaluating and pursuing a personal injury case. Contact Missouri Accident Attorney Ben Sansone today for a free evaluation of your case, call (314) 863-0500 or contact an injury lawyer online.

As a St Louis accident attorney, many clients we represent are individuals hurt by a drunk driver or the families of someone killed by a drunk driver. These cases typically result in much higher damage awards from juries because of the drunk driving issues, even if alcohol is only a factor and there is no evidence of "legal intoxication" or over a .08 BAC.

Oftentimes, in these cases, the intoxicated driver will deny they were drunk and even oftentimes deny they were at fault for the needless injuries or death they caused. A defense tactic to try and prevent the jury from hearing about alcohol and the recklessness of the DWI driver is to "stipulate liability" at trial. In other words, just before trial starts, they tell the judge (outside the presence of the jury) that they will admit fault (liability), then try to claim any evidence of intoxication is irreverent and should not be heard by the jury, since fault is no longer an issue.

Auto insurance defense lawyers will argue the intoxication can be revealed to the jury ONLY AFTER after they decide on a verdict and not before a punitive damage hearing in the case, if there is one. The drunk driver's insurance lawyers will argue this since under Missouri law a jury does not consider punitive damage in the first trial, they decide it in a separate proceeding after the initial injury case is heard and a verdict determined. This makes the stipulated liability argument even more underhanded as the insurance lawyers are throwing their own client under the bus! Since auto insurer's, in most cases, do not have to cover punitive damage verdicts . So they are hoping the jury will give a small verdict in the injury case since the jury does not hear about alcohol or intoxication, and then the insurance company only has to cover that verdict and not the potential damages related to intoxication.

A good Missouri trial lawyer knows not to let this happen! Under Missouri law, even if the defendant admits fault, the intoxication and denial of liability is relevant to the Plaintiff's injuries, it helps show how needless the injuries were and the affect on the victim or their family from the defendant (through their insurance company) denying fault, it also goes to the defendant's credibility. See Burrows v. Union Pacific RR Company:

Even when a defendant makes an unqualified admission of liability, a plaintiff has the right to introduce evidence relevant to the issue of liability. Ruppel v. Clayes, 230 Mo.App. 699, 72 S.W.2d 833, 835 (St.L.1934). A defendant "cannot deprive [a] plaintiff of the right to present to the jury, in his own way, competent and relevant evidence to show all the circumstances attending [to] the accident." Id. To allow a defendant to substitute a "naked admission" for a full picture of the events may rob the evidence of much of its fair and legitimate weight. Id. at 836.

Additionally, in Franklin v Byers, 706 S.W.2d (Mo App 1986) the appeals court stated that the trial court did not abuse its discretion in admitting testimony and evidence regarding the circumstances of the accident and the defendant's intoxication. The party bearing the burden of proof is not bound to a party's admission.

We are a top injury law firm in St Louis, our head injury lawyer, Ben Sansone, successfully pursues drunk driving injury and wrongful death cases. Call today for a free meeting at (314) 863-0500 or contact us online.

Drunk Driving Injury Related Articles:

Proving the Other Driver was Intoxicated

Illinois drunk driving accident settlement

Sansone / Lauber obtains Judgment against Drunk Driver 2.3 Million

As a St Louis car accident lawyer, an issue that always comes up is what type of safety precautions was the injured victim taking, such as wearing their seat belt. Jurors want to know that the claimant took reasonable safety precautions. However, in most cases, if the injured victim was not wearing their seatbelt, that shoudl be excluded form evidence. See Missouri Car Accident Attorney Article: Can the Plaintiff's Failure to Wear a Seatbelt be Used Againt Them?

Recently, int he St Louis area, a female passenger was killed and a male driver was injured in a single-vehicle crash in Jefferson County, Missouri this past Friday night.

Police have said that Keith Kimberly lost control of his Chevy Camaro while going around a curve on Lonedell Road just before 10:30 p.m. Police believe that Kimberly attempted to overcorrect and ended up swerving into a utility pole.

Angela Long-Larue, 36, of St. Louis was pronounced dead on the scene by Rock Township emergency personnel. Kimberly made it out of the wreck in better shape and was transported to St. Anthony's Hospital with only moderate injuries.

According to the crash report, neither Kimberly nor Long-Larue was wearing a seatbelt at the time of the accident. This wreck demonstrates what we already know: every hour someone dies in America simply because they chose not to buckle up. Despite the fact that safety belts are the most effective means of reducing fatalities and serious injuries, sadly, many adults and children simple don't feel the need to use them.

Motor vehicle crashes are the leading cause of death among those between the ages of five and 34. An astounding 2.3 million adult drivers and passengers were treated in emergency departments as the result of being injured in motor vehicle crashes in 2009. The CDC says that adults who do not use safety belts may think that their behavior only affects them, but they are wrong. Studies consistently show that there is a correlation between adult belt use and child belt use. According to National Highway Traffic Safety Administration (NHTSA), when a driver is buckled, 94 percent of the time children in that vehicle are buckled; but, when a driver is unbuckled, only 30 percent of child passengers are buckled. What parent wants to pass along such a dangerous habit?

Beyond the physical harm of not wearing seatbelts, there's a monetary impact as well. Vehicle crash costs skyrocket when occupants aren't wearing seat belts, because unbelted victims sustain more severe injuries. Of the people who survive car crashes, unbelted victims stay three-to-five times longer in a hospital and incur two-to-seven times the medical costs of those wearing safety belts, according to the NHTSA.

As was the case here, many people incorrectly believe they are in less danger when driving on slower, back roads. According to NHTSA research, 75 percent of all traffic deaths and injuries occur within 25 miles of victims' homes, at speeds of less than 40 miles per hour. A good example of just how dangerous such crashes can be is that being thrown against a dashboard in a 30 mile-per-hour crash is like striking the ground after falling from a third-floor window.

For information on how to protect your legal rights if you or a loved one has been seriously injured in an accident, call one of our Missouri and Jefferson County car accident attorneys today at 314-863-0500.

Source: "St. Louis woman killed, driver injured in single-vehicle crash," by Daniel Mueller, published at KMOV.com.

See Our Related Blog Posts:

Missouri Car Accident Trial Evidence - Can the Plaintiff's Failure to Wear a Seatbelt be Used Against Them?

Megabus Bound for St. Louis Involved in Mega-Accident Leaving One Dead and Four-Dozen Injured

As a Missouri accident attorney handling hundreds of personal injury and Missouri car accident cases, I have never once seen a case where the defense admits they were in the wrong when filing their answer or defensing the lawsuit. Even in the situation where the defendant has plead guilty to DWI after being arrested after the collision. In fact not only do the auto insurance lawyers deny liability, they make affirmative defenses saying that the victim was at fault. However, oftentimes that changes the days before trial, the defense will decide to admit negligence or fault for the car accident or other negligence that caused they injury and then plead to the jury to ignore the facts of the accident and determine the victim is only entitled to a small amount of damages. This is an attempt to minimize the jury verdict by glossing over the defendant's reckless acts. Some St Louis judges have recently gone along with this and ruled that the evidence of the accident itself and how it happened is irrelevant since the defense admitted fault. This is reversible error. A good injury lawyer knows the law and is prepared to stop this type of a ruling that could severely damage a good injury case. This is not the law in Missouri, and even when the defense admits fault, the Plaintiff can still put on their evidence regarding how the collision or injury occurred.

This issue was resolved as far back as 1934 in the case of Ruppel v. Clayes, 72 S.W.2d 833, (MO Ct App 1934) and was recently revisited in Burrows v. Union Pacific, 218 S.W.3d 527 (Mo Ct App ED 2007), specifically stating that "Even when a defendant makes an unqualified admission of liability, a plaintiff has the right to introduce evidence relevant to the issue of liability." Burrows at 534. As to allow this would "allow a defendant to substitute a "naked admission" for a full picture of the events may rob the evidence of much of its fair and legitimate weight". Id.

Why is this important? It is particularly important in Missouri drunk driving accident cases or car collisions where the at fault driver did not make just a mistake, but was reckless in their actions that led to the auto collision or other type of injury. You can imagine that given the same injuries, a jury would likely return a different verdict if the defendant was a mother temporarily distracted by her children in the back seat versus a drunk driver coming home from the bar in the middle of the night. That is what the defense will try to do with motion to exclude the facts of the incident claiming them as irrelevant because they just admitted fault. Additionally, in most cases involving a drunk driver, the defense denies the at fault driver was drunk, and then will admit it once the case goes to trial. Well, that is relevant as the defense has now taken two inconsistent positions, dragged an innocent victim to a trial by denying they were drunk and caused the drunk driving collision and then admitting it at the last minute so they do not look like jerks to a jury. And for what? in an attempt to save an auto insurance company a little money by trying to deny a victim justice.

The last minute admission of liability is just one of many tactics in the insurance defense lawyers' arsenal. If you are the victim of personal injury, call experienced St Louis accident lawyer Ben Sansone for a free no obligation consultation at (314) 863-0500 or contact us online.

Related Blog Post:

Defendant's Denial of Liability can Come back to Haunt Them

Proving the Other Driver was Intoxicated

The successful pursuit of a medical negligence case usually requires an experienced medical accident attorney as medical negligence cases are very complex, even when the negligent act itself seems very simple and straight forward. Many medical negligence cases are "battle of the experts" cases as no matter how egregious the negligence is, the malpractice insurance company will find a doctor that will testify under oath that negligence did not occur and bad outcomes just happen. To strengthen any malpractice case, an experienced med mal lawyer will do a lot of research into authoritative medical texts to find studies and articles supporting the claims of negligence and how the procedure or situations should have been handled.

How to Use Medical Literature Effectively in a Negligence Case against a Healthcare Provider:

Use of medical literature is governed in part by R.S.Mo. § 490.065. This statute governs, in part, the role of expert witnesses in civil trials and explains the types of facts and data upon which an expert may base his opinion. Subsection 3 of the statute states, in pertinent part, as follows:

"The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable."

Thus, R.S.Mo. § 490.065(3) makes it clear that an expert witness may rely upon data like medical literature, which has traditionally been thought of as hearsay, so long as the data is "of a type reasonably relied upon by experts in the field ... [and is] otherwise reasonably reliable."

At least three Missouri cases clearly state that it is permissible for a medical negligence expert to rely upon medical literature during their direct examination and in support of their opinions.

Stallings v. Washington Univ., 794 S.W.2d 264 (Mo. App. 1990) is a medical malpractice case wherein the Defendants' experts were asked, on direct examination, whether the medical literature supported their positions, and then proceed to discuss the medical literature and how it supported their position. The Plaintiff objected on hearsay grounds, arguing that medical literature could only be used in cross examination. The trial court denied the objections and allowed the discussion by the expert about the content of the articles. The Eastern District affirmed the case on appeal ruling that under §490.065 and principles established in earlier case law, the use of medical literature in this manner was entirely proper.

The use of medical literature on direct exam is also recognized in Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658 (Mo. App. 1994), where the Court summarized the point:

Medical journal articles may be used on direct or cross-examination to test the knowledge of the expert and the reliability of his opinion. See Stallings ... (direct examination); Ball v. Burlington Northern RR. Co., 672 S.W.2d 358, 363 (Mo. App. 1984)] (cross examination). This is usually accomplished by reading from the publication and asking the expert if he agrees with the statement, as was done in this case with the three medical articles which were used at trial. (Emphasis added.) Id. at 664. The court noted that the medical literature does not become substantive evidence in the case even when used on direct examination, but it may still be referred to, discussed, and published to the jury as data upon which the expert relies. Id. at 665, but cf. Kelly v. St. Luke's Hosp., 826 S.W.2d 391, 396 (Mo. App. 1992). (Emphasis Added).

In Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993), the Missouri Supreme Court held that plaintiff had made a submissible case of causation, and indicated its approval of plaintiff's use of literature to support his position:

"In forming his opinions, Dr. Burmeister relied on his own experience concerning the interaction between viral infections and bacterial infections. He relied on published studies in other areas of medicine indicating that endotoxins in human beings can cause a person's immune system to be suppressed and cause a person to be more susceptible to disease. Furthermore, he relied on the package inserts and Physician's Desk Reference information that accompanies the polio vaccine, which caution against the use of the vaccine in a patient who is suffering from an acute illness; in a patient with genetic immune deficiencies; and in a patient whose immune system was suppressed due to other factors, including steroids, immune serum globulin therapy, radiation, chemotherapy, and leukemia. In combination, this information provides reliable support for each step of reasoning Dr. Burmeister used to conclude that if endotoxins have suppressed a person's immune system, the attenuated polio virus in the vaccine may overwhelm a person's immune system and develop into the polio disease .... Dr. Malone's testimony, based on various immunology studies that reported an immunosuppressive effect following the administration of endotoxins to healthy adults, reached the same conclusion as Dr. Burmeister." (Emphasis added.)

The Statute and cases above make it clear that experts can rely upon medical literature to support their opinions and discuss the content of the literature as an exception to the hearsay rule. What the above case do not discuss is exactly how that information is "published" to the jury. Was the text actually displayed or passed to the jury rather than just read or discussed? Peterson v. National Carriers, Inc., 972 S.W.2d 349 (Mo. App. 1998) is instructive on that point. The court in part relied upon R.S.Mo.§ 490.065 to support it's opinion that it was proper for the expert to rely on hearsay evidence and discuss it during his direct exam because it was of a type experts in his field usually rely on. The Court approvedthe expert witness' use of an enlarged copy of the accident report (with certain redactions) for display to the jury. This of course is consistent with the notion that evidence properly admitted should also be available for proper demonstration so that the jury can best understand it.

Therefore, medical texts reasonably relied upon by experts should be admissible into evidence and thus view able by the jury. This is important because the authoritative test is not biased, it is not being paid by either party, and juries trust publications more than hired experts.

Continue reading "Use of Medical Literature or "Authoritative Texts" in Missouri Medical Malpractice Cases " »

Ever since the 2005 Tort "reform" law changes in Missouri there has been an ongoing debate as to what the amount of medical damages submitted to a jury is. Auto insurance companies and their lawyers argue for the amount paid by the individual or their health insurance and not the full amount of the bill. As most people know, the amount of a medical bill and the amount actually paid often differ. See Injury Law Article: Medical Bills at Trial. This previous injury law article discusses the background of the "paid" versus "billed" debate.

Recently, Missouri Federal Judge Mummert issued an order pertnaing to this issue in an Under-Insured Motorist "UIM" case which would logically also apply to a Missouri Uninsured Motorist "UM" case as well. Judge Mummert ruled that Mo.Rev.Stat. § 490.715.5(2) is inapplicable in a under-insured motorist case, and thus also a uninsured motorist case, because the negligent person responsible for the injuries, the Under-insured motorist, is not a party to the case, thus the statue is not applicable. Section 490.715.5(1) reads that "[p]arties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party." Because the medical treatment rendered to Plaintiff was the proximate result of a non-party, a plain reading of the statute forecloses application by the insurance company; which is the named defendant (party) to a UIM or UM case. See Mummert.Order.490.715.pdf

This is an important ruling for all "UM" and "UIM" cases going forward as it helps put the argument to rest of what amount to consider going to the jury in an auto crash or other personal injury trial. The difference between the amount Paid versus Billed is oftentimes very significant and makes a major difference in settlement negotiations as well as at trial. The "Paid" versus "Billed" battle is still ongoing and is not settled law in Missouri. However, Orders like this one, even though it is pertinent to UM or UIM cases only, helps settle the issue at least for certain types of cases.

Related Articles:

Medical Bills at Trial: "Billed" versus "Paid" Amount, what if Bills Partially Paid? So "Billed" versus "Partially Paid"?

Missouri Personal Injury Trial Evidence: Increased Risk of Future Surgery Admissible When.....

Auto accident lawyer Ben Sansone focuses his practice on personal injury, auto accidents, premise liability, and medical malpractice. For a free & no obligation consultation with a personal injury attorney, contact a lawyer today or call (314) 863-0500.

No, not paying someone off to say what you want, but a cycling accessory that tracks your ride and takes video and still pictures. Bike accessory manufacturer Cat Eye has released the "Inou" which is a front facing camera that takes stills and video. Additionally, it tracks your ride and has lots of other cool features other than documenting an accident.

After handling dozens of bike accidents in St Louis and across the State of Missouri and Illinois, one thing is for sure, cyclists get hurt badly and the driver never admits fault. In fact the driver will often blame the cyclist even though though the cyclist was legally traveling on the road and did nothing negligent. It is the nature of most drivers, blame the pesky people riding bikes, getting in the way on the road, and slowing down traffic. More often than not, there are no witnesses and as previously discussed on this blog, no witness is bad news for an injured cyclist. All jurors are drivers but only a few are cyclists, and even fewer are regular cyclists. Who do you think they are going to instinctively relate to and side with?

If you are a regular cyclist you should really consider something like this camera, especially if you ride solo. An example from my experience as a bike crash lawyer.

The 911 caller saves the day: A few years back we had a jury trial on a bike injury case as the insurance company offered nothing claiming the entire time the hurt bicyclist was entirely at fault. See - St Louis Bike Accident Trial. The cyclist was the victim of the "right hook" meaning the driver passed her and then made a right turn right in front of her cutting her off and forcing her to crash into the side of the truck. See Bike Lawyer Article: "Missouri Bike Accident - Caused by the "Right Hook" - Injured Cyclist Hired St Louis Missouri Injury Lawyer After Settlement Negotiations Halted"

Of course the driver of the truck said the bicycle accident was completely the biker's fault and even the responding police officer opined that it was the cyclists fault, even though he did not witnesses it. In fact, when the injured biker saw the report she called the police to supplement. The officer did, but made comments that he believed she was supplementing the report just for a lawsuit and he believed she was at fault. Statements that were prevented from being presented to the jury at trial.

So, at this point this case is a loser, why? no witnesses! Had this cyclist had a forward facing camera it would have been clear she was cut off. Fortunately, we were able to track down the 911 caller, he testified that he saw the bike versus car collision and it was the driver's fault. Without this eye witness testimony the only evidence the jury would have had to go on was a driver's testimony who was covering his own behind and the testimony of a cop that did not witnesses the accident and apparently did not like cyclists.

MORAL OF THE STORY: Buy a camera witness because independent human witnesses rarely see a bike crash. I cannot stress it enough, as time and time again I see police reports written up automatically blaming the cyclist, and investigation and witness interviews tell a completely different story.

Continue reading "Cyclists - you can now buy a witness! Witnesses are Critical in Bike Injury Claims" »

In a previous Missouri injury law blog post I discussed that a witness' opinion that another witness or one of the parties to the lawsuit is telling the truth or lying is inadmissible in most situations. See: Witnesses Generally Cannot Testify that they Believe another Witness is Telling the Truth here.

When preparing a personal injury case for trial the insurance defense lawyers may try to establish a theme or red herring to witnesses suggesting that the injured Plaintiff is not really hurt but motivated by money, in other words, asking for an opinion that the injured client is not telling the truth to help their lawsuit. This situation also falls under the above premise that witnesses cannot comment on truth or veracity of other witnesses.

A Defense Doctor (or other witness) Cannot Imply a Plaintiff's Complaints of Injury is Greater because a Lawsuit is Pending

In Yingling v. Hartwig, 925 S.W.2d. 952 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation. The court held that comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, that is an issue for the jury to decide, not fact witnesses. The testimony was a comment on a plaintiff's credibility; a statement that plaintiff's generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Taylor, 663 S.W.2d. 235, 239 (Mo.banc 1984) ("Expert opinion testimony is not admissible as it relates to credibility of witnesses."

Attacking Plaintiff for their use of the Legal System

Comments that the Plaintiff has used the legal system in an attempt to discredit them must be prevented. Questions about when the Plaintiff first consulted their Missouri personal injury lawyer is not allowed, because the questions were asked "to discredit plaintiffs as avaricious because they sought the services of a lawyer soon after their son's death." Carlyle v. Lai, 783 S.W.2d 925, 929 (Mo.App. W.D. 1989)("Accessing the legal system is normally not to be discouraged and, exercising one's right to utilize the legal system within established rules and procedures should normally not be used to attempt to discredit a litigant with a jury.") Also, comments on when the Plaintiff filed the lawsuit are improper, Edgell v. Leighty, 825 S.W.2d 325 (Mo.App. S.D. 1992)(Court properly excluded evidence concerning date injured motorist filed suit).

Conclusion on how to handle Criticism of the Plaintiff regarding their Truthfulness or Motivations:

Opposing counsel and their witnesses must be prevented from injecting improper issues of motivation of the Plaintiff for bringing a lawsuit. Defense counsel and their witnesses should not be allowed to argue to the jury that Plaintiffs are faking or exaggerating their injuries for purposes of litigation when there is no evidence that this is the case, apart from the speculative and inadmissible opinions of Defendant's hired expert.

Throughout litigation, discovery, depositions, motions, etc ... opposing lawyers will often make these types of accusations so you know they are coming. However, do not wait for it to be brought up at trial, experienced injury lawyers know to address this in pretrial motions with the judge asking for advanced rulings on these issues.

Accusations of lying for monetary gain is the red meat for the defense oriented jurors. If those arguments get in front of a jury through express opinions of witnesses or implied by defense lawyers in their comments that is ammo for defense oriented jurors to improperly convince or sway the other jurors that are following the law. These arguments are used all the time by local St Louis insurance defense attorneys, a good injury trial lawyer is on their toes and ready for these types of arguments and ready to counter them or prevent them before they get in front of a jury.

Ben Sansone is a Clayton based Injury Attorney for over ten years and has handled hundreds of personal injury cases to successful conclusions. If you need to speak with a lawyer call us today at (314) 863-0500 for a FREE and NO OBLIGATION Consultation.

In Missouri, injury claims, such as a car or truck accident, are valued by the amount of harms and losses suffered by the victim. There are two general types of harms and losses or "Damages" in personal injury cases; (1) Special damages or economic damages: which include specific amounts billed or out of pocket, such as past and future medical bills, past and future lost wages, damage to property. The second general type of damages is (2) Non economic damages or pain and suffering. In the past medical bills were determined by the amount billed, not the amount paid. So if the injured victim was charged $100,000 in medical care but their insurance paid $50,000, at trial the evidence would be $100,000, not $50,000.

Currently, the billed versus paid amount being submitted to a jury is controlled by the Missouri Supreme Court case of Deck v Teasley. See St Louis injury law article: "Under Missouri Personal Injury Law, Medical Damages are Amount BILLED to patient, NOT Amount PAID by Insurance; assuming proper evidence is established by Plaintiff" However, What if the medical bills are only partially paid and not satisfied in full by a lower amount paid by insurance, can the defense make a rebuttable presumption of reasonable value being the amount paid? As a practicing St Louis PI lawyer I think the answer is no.

An affidavit as to the amount partially paid with a balance owed should not invoke the rebuttable presumption of reasonable value created by Missouri Statute 490.715. As the statute specifically provides that " (2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. R.S.Mo. 490.715.5 (2) (emphasis added.) If the medical providers bills are not satisfied in full then the defendant should not be entitled to the statutorily created presumption. No provision of law, and certainly not R.S.Mo. 490.715, allows Defendant to urge that the partial payment of a medical bill which does not satisfy the balance owed is the reasonable value of medical services provided to Plaintiff.

The Deck case did not completely resolve the billed versus paid battle. This is currently still a tricky area of law and is handled differently by different judges. At trial many Judges are currently allowing the plaintiff to submit evidence of the total amount billed and allowing the defense to submit evidence of the amount paid. However, neither side is allowed to comment as to why the numbers are different. Neither side is allowed to mention insurance, neither medical insurance or auto insurance. So they issue of billed versus paid is still not completely settled, but good injury lawyers are making sure they submit the strongest evidence on behalf of their clients to at least get the amount billed in front of a jury whether it is submitted with the amount paid or hopefully, just by itself.

St Louis car accident attorney and personal injury lawyer Ben Sansone of the Sansone / Lauber law firm has been practicing injury law for over 10 years in the St Louis area and across Missouri and Illinois. Call (314) 863-0500 or contact an injury lawyer online for a free no obligation consultation today.